Befareen Pharmacy Limited V. African International Bank Limited (2005)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

This is an appeal against the judgment of the Anambra State, High Court of Justice, Onitsha Judicial Division, delivered on the 30/4/99, in suit No.0/42/99.

The claim of the plaintiff – The African International Bank Ltd are as follows:

(a) The sum of N21,076,931.87 (Twenty-one million, Seventy Six Thousand, Nine hundred and Thirty-one Naira Eighty-Seven Kobo) being the outstanding balance of the overdraft and import loan facilities granted to the defendant by the plaintiff.

(b) Interest on the said sum of N21,076,93 1.87 at the rate of 21% per annum with monthly rests from the 1st day of November, 1998, until the date of judgment.

(c) Interest at the rate of 5% per annum on the judgment debt from the date of judgment until the entire sum is finally liquidated.

The plaintiff filed an affidavit in support of the foregoing particulars to which were annexed eleven documents marked as exhs. A, B, B1, C, D1, D2, D3, E and F respectively. The plaintiff gave the indication that the defendant – Befareen Pharmacy Ltd. had no defence to the plaintiff’s claim; the suit was placed under the undefended list. The defendant filed a notice of intention to defend the suit supported with an affidavit to which were annexed six documents marked as exhibits A, B, C, C2, D and E. The appellant filed a motion on notice for extension of time to regularize the notice of intention to defend which was filed out of time.

The court granted the appellants application and reserved the case for ruling under the provisions of order 24 rule 9(2) of the High Court (Civil Procedure Rules) of Anambra State, 1988. The learned trial Judge considered the particulars of the claim and the Supporting affidavit, the notice of intention to defend of the defendant and the supporting affidavit, and in his considered ruling concluded that the appellant has not placed before the court any bonafide issue for trial, and consequently proceeded to enter judgment for the plaintiff as claimed. Being dissatisfied with the ruling the defendant, henceforthm to be referred to as the appellant appealed to this court. Parties exchanged briefs and at the time of hearing of this appeal, the appellant relied on the brief filed on 30/11/99, and the respondent on the brief deemed filed on the 9/10/02.

The appellant distilled four issues for determination from his four grounds of appeal as follows: –

(1) Whether the learned trial Judge was not in error, in holding that the defendant company did not disclose a triable issue in its notice of intention to defend.

(2) Whether the learned trial Judge was not in error, in holding that Order 24 rules 9(1) (2) and (4) of the High Court (Civil Procedure) Rules do not permit counsel on both sides to address the court after filing their papers.

(3) Whether there was breach of the principle of fair hearing and undue interference by the Judge which occasioned a grave miscarriage of justice.

(4) Whether the ruling or decision was against the weight of evidence having regard to the affidavit of the defendant and the exhibits attached.

The respondent in his brief distilled three issues for determination as follows:-